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FOIL Appeal Determination for 07-20-1A (Liam Neville)

February 24, 2009

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

February 24, 2009

Mr. Liam Neville
30-45 Hobart Street, Apt. 6-A
Woodside, New York 11377

Re: Freedom of Information Law ("FOIL") Appeal No. 07-20-1A

Dear Mr. Neville:

We have, as part of the above-referenced appeal, completed our review of the records that were initially withheld by staff of the New York State Department of Environmental Conservation ("DEC") concerning the former Sylvania Products facility at 100 Cantiague Rock Road, Hicksville, New York. You were notified that records had been withheld by letter dated April 11, 2007 from DEC Records Access Officer Ruth L. Earl, from which your appeal was taken.

The enclosed computer compact disk contains records that had been withheld but which we have determined should be released in accordance with the records access provisions of Public Officers Law ("POL") § 87(2), in consultation with the Office of Attorney General and the DEC Region 1 Office.

This letter and the enclosed disk conclude the appeal process. As you know, the decision relative to the withholding of records has been conveyed in a series of appeal determination letters that have addressed portions of the withheld records. We handled your appeal in this manner due, in part, to the large number of records involved and to ensure, once it was determined that any records could be released, that those records would be expeditiously forwarded to you. The decision on your appeal consists of our letters dated June 22, 2007, July 2, 2007, October 4, 2007, December 24, 2007, January 18, 2008, May 30, 2008, and of today. During this period, Administrative Law Judge Susan J. DuBois and I have also provided you with periodic verbal updates on the appeal's status.

Approximately 3,400 records were initially withheld by Department staff. Pursuant to this appeal, approximately 1,300 records have been released. We have determined that the remaining records should continue to be withheld. Most of the records that are continuing to be withheld fall specifically within the FOIL exemptions in POL § 87(2)(a) and POL § 87(2)(g).

POL § 87(2)(a) exempts records from disclosure that are specifically exempted from disclosure by state or federal statute. For example, attorney-client communications and/or attorney work product are exempt from disclosure pursuant to this section (see, respectively, Civil Practice Law and Rules ["CPLR"] § 4503[a] and/or CPLR § 3101[c]; see also Turner v. Dept. of Finance of the City of New York, 242 AD2d 146, 148 [1st Dept 1998], Matter of Morgan v. NYSDEC, 9 AD3d 586 [3d Dept 2004], and Matter of Rye Police Ass'n v. City of Rye, 34 AD3d 591, 591-92 [2d Dept 2006]).

POL § 87(2)(g) exempts from disclosure records that are inter-agency or intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits. Intra-agency and inter-agency materials that consist of opinions and recommendations of agency staff are exempted from FOIL "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (citation omitted)" (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [1985]; see also New York Times Co. v. City of New York Fire Department, 4 NY3d 477, 488 [2005] ["The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly"]).

The same rationale for withholding such pre-decisional information also applies to communications between the Department and federal agencies (for example, correspondence between DEC and the federal Army Corps of Engineers and the federal Nuclear Regulatory Commission regarding the investigation and cleanup efforts at the site). The Department and those agencies share a "common legal interest" with respect to the site that supports withholding such records (see, e.g., General Electric Co. v. USEPA, 18 F Supp2d 138, 142 [D Mass 1998]; General Electric Co. v. Department of Environmental Protection, 429 Mass. 798, 807 [1999]; and Gallagher v. Office of the Attorney General, 141 Md. App. 664, 676-76 [Md. Ct. App. 2001]).

With respect to the records that are being withheld in this appeal, a subset of the intra-agency or inter-agency records were also withheld on the basis that they constitute attorney-client communications pursuant to CPLR 4503(a) and therefore would be exempt under POL § 87(2)(a).

One record was withheld on personal privacy grounds in accordance with POL § 87(2)(b) in that the record included information on an individual's work history and related personal information including a telephone number which appears to be his home telephone number.

Certain records included draft materials relating to the context of workplans, draft language under consideration for consent orders or voluntary cleanup work, or other correspondence relating to negotiations concerning the scope of work to be conducted at the site. Such records may be withheld under POL §§ 87(2)(a) or 87(2)(e)(i). Courts have determined that documents containing settlement discussions may be withheld from disclosure based upon the public interest in fostering negotiations (see, e.g., United States v. Town of Moreau, et al., 979 F. Supp. 129 [NDNY 1997], aff'd [U.S. v. Glens Falls Newspapers, Inc.], 160 F3d 853 [2d Cir 1998]). In addition, POL § 87(2)(e)(i) authorizes the withholding of records or portions thereof compiled for law enforcement purposes which, if disclosed, would interfere with law enforcement investigations. Records relating to agency enforcement activity, including but not limited to consent order negotiations, would be subject to this exemption (see Pride International Realty, LLC v. Daniels, 4 Misc 3d 1005[A][Sup Ct, New York County 2004]).

This letter, together with the six other letters identified by date above, represent the final determination of the Department of Environmental Conservation with respect to your appeal. You have the right to seek review of this determination pursuant to Article 78 of the CPLR and POL § 89(4)(b). In any further correspondence relating to this appeal, please refer to FOIL Appeal No. 07-20-1A. To the extent that you may have any questions regarding this letter, please feel free to contact me.

Yours truly,

/s/

Louis A. Alexander
Assistant Commissioner

Enclosure

cc: Robert Freeman, Executive Director,
Committee on Open Government
Ruth Earl, Records Access Officer
Dena Putnick, FOIL Appeals Officer
Susan J. DuBois, Administrative Law Judge


November 13, 2009

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Mr. Liam Neville
30-45 Hobart Street, Apt. 6-A
Woodside, New York 11377

Re: FOIL Appeal No. 07-20-1A

Dear Mr. Neville:

On May 6, 2009, I notified you that the Office of Hearings and Mediation Services ("OHMS") had been advised that additional records existed that may be subject to your Freedom of Information Law ("FOIL") appeal (No. 07-20-1A). Those records were located in computer format repositories at the Office of the Attorney General. In light of the foregoing, I also advised that my prior letter dated February 24, 2009 should not be considered a final determination for statute of limitation purposes.

With letters dated May 11, 2009 and July 31, 2009, I mailed to you computer disks that contained records that the Office of the Attorney General had provided to other parties in the New Cassel litigation. The July 31, 2009 letter also stated that OHMS had received a disk dated June 2009 that contained records that the Office of the Attorney General still identified as privileged at that time, and that we would review the records on this disk with respect to your FOIL appeal.

This review has now been completed, and we have determined, with concurrence of the Office of the Attorney General, that certain records on the June 2009 disk are responsive to your FOIL request and are releaseable under FOIL. A computer disk containing these records is enclosed with this letter.

The June 2009 disk of withheld records also contained records that were not responsive to your request concerning 100 Cantiague Rock Road, Hicksville, New York, or that were exempt from release under FOIL. The exemption applicable to many of the records on the June 2009 disk is section 87(2)(g) of the Public Officers Law ("POL") , which exempts from disclosure inter- or intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits. In addition, one record contains in part releaseable material. That record is being released in a redacted form because the first page is a draft of a report but the second page is the final version of the report.

Other records on the June 2009 disk of withheld records are exempt from FOIL disclosure under POL § 87(2)(a), records specifically exempted from disclosure by state or federal statute. These records are attorney-client communications (Civil Practice Law and Rules ["CPLR"] § 4503[a]) and/or attorney work product (CPLR § 3101[c]).

A subset of the inter- or intra-agency records are withheld both under POL § 87(2)(g) and on the basis of being attorney-client communications and/or attorney work product.

Furthermore, two records are communications between the Department of Environmental Conservation ("DEC") and the United States Army Corps of Engineers, with which DEC shares a "common legal interest" with respect to the site that supports withholding such records (see, e.g., General Electric Co. v. USEPA, 18 F Supp2d 138, 142 [D Mass 1998]; General Electric Co. v. Department of Environmental Protection, 429 Mass. 798, 807 [1999]; and Gallagher v. Office of the Attorney General, 141 Md. App. 664, 676-76 [Md. Ct. App. 2001]).

Certain records included draft materials relating to the context of workplans, draft language under consideration for consent orders or voluntary cleanup work, or other correspondence relating to negotiations concerning the scope of work to be conducted at the site. Such records may be withheld under POL §§ 87(2)(a) or 87(2)(e)(i). Courts have determined that documents containing settlement discussions may be withheld from disclosure based upon the public interest in fostering negotiations (see, e.g., United States v. Town of Moreau, et al., 979 F. Supp. 129 [NDNY 1997], aff'd [U.S. v. Glens Falls Newspapers, Inc.], 160 F3d 853 [2d Cir 1998]). In addition, POL § 87(2)(e)(i) authorizes the withholding of records or portions thereof compiled for law enforcement purposes which, if disclosed, would interfere with law enforcement investigations. Records relating to agency enforcement activity, including but not limited to consent order negotiations, would be subject to this exemption (see Pride International Realty, LLC v. Daniels, 4 Misc 3d 1005[A][Sup Ct, New York County 2004]).

Of the 849 records on the June 2009 disk of withheld records, 97 records (which are on the enclosed computer disk) are being released in their entirety and one (1) record, as noted, is being released in a redacted form. The redacted document is enclosed as a paper copy with the present letter rather than being on the enclosed computer disk.

This letter, and the enclosed materials, represent the final portion of the review of records subject to FOIL Appeal No. 07-20-1A. The decision on your appeal consists of our letters dated June 22, 2007, July 2, 2007, October 4, 2007, December 24, 2007, January 18, 2008, May 30, 2008, February 24, 2009, May 6, 2009, May 11, 2009, July 31, 2009 and today.

This letter, together with the other letters identified in the preceding paragraph, represent the final determination of the DEC with respect to your appeal. You have the right to seek review of this determination pursuant to Article 78 of the CPLR and POL § 89(4)(b). In any further correspondence relating to this appeal, please refer to FOIL Appeal. No. 07-20-1A. To the extent you may have any questions regarding this letter, please feel free to contact me.

Yours truly,

/s/

Louis A. Alexander
Assistant Commissioner

Enclosures

cc: Robert Freeman, Executive Director,
Committee on Open Government
Ruth Earl, Records Access Officer
Dena Putnick, FOIL Appeals Officer
Susan J. DuBois, Administrative Law Judge (w/o enclosures)

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